Drink bus driver U-turn wins appeal, claims cop is ‘too hungry’ to test blood

A man who made a U-turn on the approach to a police checkpoint after drinking three glasses of wine and blowing a breathalyzer test positive has successfully appealed his conviction, saying he was refused a blood test and that the officer wanted to finish his shift because he was hungry .

Following an appeal, Md Zakaria Wahed, 48, was convicted of drunk driving and sentencing by New Zealand’s High Court this month.

In a March 6 verdict released March 23, Judge Palmer agreed that there had been a “miscarriage of justice” in Wahed’s trial in Tauranga District Court last April.

At that trial, Wahed was found guilty of driving with too much breath alcohol, over the 400 microgram limit, under Section 56 of the Land Transport Act 1998. He was disqualified from driving for six months and fined $600.

At trial, the court learned that in May 2021, Wahed made a U-turn while approaching a police breath checkpoint in Pāpāmoa, Tauranga. He admitted to drinking three glasses of red wine with dinner three hours beforehand.

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He failed a breath test and was taken to the “boozy bus” for an evidentiary breath test. That test showed he had 493 micrograms of alcohol per liter of breath, more than the legal limit of 400 micrograms for driving.

After a positive proof breath test of more than 400 micrograms of alcohol per liter of breath, a person has the right to opt for a blood test within 10 minutes.

Wahed was adamant that he wanted a blood test, for an accurate record of his blood alcohol level, but said this was refused because the officer, Constable Hannah, was “hungry and wanted to go home”.

Constable Hannah said there was no request for blood.

On appeal, police counsel argued that questions had been raised about the claim that the Constable was tired and hungry, but that the matter was not simply put to Constable Hannah and there was no reason to give weight to that proof. The police board reaffirmed that Wahed had not requested a blood test within the 10-minute time frame.

Wahed’s counsel argued that Wahed had difficulty with English and had asked a question about a blood test that should have been taken as a request.

In considering the appeal, Judge Palmer said that “the noncommittal nature of the interrogation at trial and the difficulty of understanding Mr Wahed’s somewhat elliptical answers would have made it difficult for the trial judge to review the evidence at trial.” review the process.”

Analyzing a transcript of the events, Judge Palmer concluded that Wahed was fixated on getting a blood test and early requested one to accompany the officer to the liquor bus, but that “he clearly missed the purpose of the 10- minute period. As far as he was concerned, he was waiting for his blood work.”

Justice Palmer chose to overturn the conviction and sentence rather than order a new trial.

“Although drunk driving is serious, the alleged offense here was relatively minor and occurred 21 months ago. There is a long backlog in the handling of cases in court. It is not in the interests of justice to order a new trial.”

The judge also said Wahed “should be more careful about drunk driving”.